September 19, 2023, opinions

Posted on by tadbartlett

Designated for publication

  • U.S. v. Ramirez, 22-50042, appeal from W.D. Tex.
    • per curiam (9 judges against rehearing: Stewart, Elrod, Southwick, Haynes, Graves, Higginson, Willett, Engelhardt, Douglas; 7 judges for rehearing: Richman, Jones, Smith, Ho, Duncan, Oldham, Wilson), Smith, J., dissenting from denial of rehearing; criminal, search and seizure
    • Denying en banc rehearing of May 10, 2023, panel opinion that vacated defendant’s conviction for being a felon in possession of a firearm, holding that district court erred in denying motion to suppress evidence of firearm found in jacket that defendant had tossed over a fence into his mother’s backyard.
    • Judge Smith dissented, calling the panel opinion “serious error” and “easily enbancworthy.” Judge Smith found erroneous the panel opinion’s determination that the defendant had an expectation of privacy when the jacket landed on top of his mother’s trash can and remained in plain sight of the arresting officers, as well as the determination that the expectation of property extended to “family property,” even though the defendant did not have a key to his mother’s house and did not sleep there.
    • Judge Smith also lamented that the panel redesignated its opinion from published to unpublished while the en banc poll was being conducted. “Highly consequential opinions should not be designated as unpublished in an obvious effort to discourage judges from voting in favor of en banc rehearing.”

Unpublished

  • Morgan v. Richards, 21-10931, appeal from N.D. Tex.
    • per curiam (Elrod, Haynes, Willett), prisoner suit
    • Affirming denial of motion to appoint counsel for Texas state prisoner’s § 1983 action.
  • Ney v. 3I Group, P.L.C., 21-50431, appeal from W.D. Tex.
    • per curiam (Barksdale, Stewart, Dennis), breach of contract, forum non conveniens
    • Affirming dismissal of claim for breach of oral contract on forum non conveniens grounds on basis of valid forum-selection clause in underlying written contract.
  • Ingram Barge Co. v. Ratcliff, 22-30577, appeal from M.D. La.
    • per curiam (Duncan, Wilson, Schroeder, by designation), maritime law
    • Affirming summary judgment that plaintiff lacked seaman status under the Jones Act and dismissing plaintiff’s negligence claims against barge company for injuries received while performing barge cleaning services for company.
  • Dougherty v. U.S. Department of Homeland Security, 22-40665, appeal from S.D. Tex.
    • per curiam (Davis, Southwick, Oldham), § 1983
    • Affirming dismissal of First, Fourth, and Fifth Amendment claims, and claims under the Electronic Communications Privacy Act, Computer Fraud and Abuse Act, Stored Communications Act, and state law claims arising from alleged surveillance and tampering with immigration attorney’s electronic and communications devices, modified to specify that dismissal of ECPA, CFAA, and SCA claims was without prejudice.
  • U.S. v. Reyna, 23-40139, appeal from S.D. Tex.
    • per curiam (Jolly, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.